The Deprivation of Liberty Safeguards and The Importance of Advice

The Deprivation of Liberty Safeguards (DoLS) were introduced to protect adults who lack capacity to make decisions about the care and treatment they receive in hospitals and care homes. The provisions ensure that care arrangements which restrict a person’s liberty are appropriate, proportionate and necessary to protect the individual from harm.

Whilst there is no formal definition of a ‘deprivation of liberty’, the DoLS Code of Practice lists some circumstances which may be considered to be a deprivation of liberty. The use of restraint or sedation to admit a person to an institution against their wishes, staff exercising control over treatment, contact and residence, and the loss of autonomy due to continuous supervision and control may all amount to deprivations of liberty, depending on the individual circumstances of each case.

If a person is considered to be deprived of their liberty, the institution must apply to the local authority for that deprivation to be authorised. Applications can be expedited as urgent where the individual’s safety is considered to be at risk.   The application must explain why the individual needs to be under control, what the risks are if they are left at home alone, what issues have already arisen and the frequency of any such issues, and what action will be required following a DoLS authorisation.

Upon receipt of an application, the DoLS team at the Local Authority will carry out a number of assessments, including an assessment of the individual’s mental capacity and a consideration of their best interests.   The DoLS assessor can recommend that certain conditions are attached to a DoLS authorisation, and the Local Authority must have regard to any such recommendations when making a final authorisation decision.    Once an authorisation is granted by the Local Authority, it is valid for up to 12 months.

If an authorisation is refused by the Local Authority, it is then unlawful to continue with the care plan which is restrictive of the individual’s freedom.

There have been some criticism of the DoLS system. The UK Supreme Court held in Cheshire West v Chester Council (2014) UKSC 19 that an individual’s compliance or lack of objection is irrelevant when considering whether they are deprived of their liberty. The Court warned that institutions should err on the side of caution when determining what constitutes a ‘deprivation of liberty’ due to the vulnerability of the individuals concerned. This has resulted in Local Authorities seeing an increase in applications for DoLS authorisation from hospitals and care homes. As it comes down to a question of fact and law in each case, institutions are increasingly leaving it to the Local Authority to identify the situations where DoLS authorisation is required.

Critics also fear that Local Authorities are acting in a conflicting position – on the one hand the Local Authority is often responsible for commissioning the care which deprives the individual of their liberty in the first instance, yet they are also the body responsible for assessing and authorising those deprivations.

The Law Commission has issued a consultation paper proposing to replace DoLS with a new scheme.   It remains to be seen what changes will be implemented following the Law Commission’s consultation, but for now the DoLS system remains in place. Given that this is a complex area of the law, it is important for individuals and institutions to seek professional legal advice. At Forbes Solicitors, we have a team of specialist Elderly Client Solicitors who are on hand to give you guidance on the DoLS system.

Should you require any further information, please contact Lorraine Wilson in our Wills, Probate, Tax and Trusts Department on freephone 0800 975 2643 or or send any question through to Forbes Solicitors via our online contact form.

This entry was posted in Wills, Tax, Trusts and Probate.